AG’s lawyer tells High Court she can’t force a PM’s recusal, then says she can

At high stakes hearing, justices make clear they won’t abolish law aimed at shielding Netanyahu from being told to step down, but seem split over whether to delay its implementation

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

Attorney Aner Helman at a High Court hearing on petitions against the recusal law, at the Supreme Court in Jerusalem, September 28, 2023. (Chaim Goldberg/Flash90)
Attorney Aner Helman at a High Court hearing on petitions against the recusal law, at the Supreme Court in Jerusalem, September 28, 2023. (Chaim Goldberg/Flash90)

A closely watched High Court of Justice hearing on a newly passed law shielding the prime minister from conflict of interest rules became the scene of a bizarre legal drama on Thursday, as a legal representative allowed for the possibility of the attorney general forcing the premier to recuse himself from office, after earlier claiming that his client had never believed she had that authority.

Attorney General Gali Baharav-Miara had responded to petitions against the law by calling for the implementation date of the legislation to be postponed to avoid aiding sitting Prime Minister Benjamin Netanyahu, after determining it had been improperly legislated for his personal benefit.

But the initial comments made by Attorney Aner Helman, representing Baharav-Miara at the charged High Court hearing, called into question her position, as it would have meant the new law did not substantively change the attorney general’s legal authority in the matter.

Several hours later, Helman clarified that the attorney general’s position was that declaring the prime minister to be incapacitated due to a conflict of interest over his criminal trial could not be ruled out, arguing that implementing the law with Netanyahu in office would strip her of that authority.

In another crucial moment, Supreme Court Justice Esther Hayut insisted that the court has no intention of annulling the law altogether, but is instead considering only whether to delay its implementation to a future date to circumvent its highly problematic personal aspect.

Although several liberal justices, including Hayut, made clear that they believed the personal nature of the law to be highly problematic, conservative justices on the panel pointedly noted that, despite being personally tailored for Netanyahu, the legislation decisively clarifies what had previously been a very ambiguous legal situation, and thus had merit.

Prime Minister Benjamin Netanyahu raises a toast at the weekly cabinet meeting ahead of the Jewish New Year, September 10, 2023. (Chaim Goldberg/Flash90)

The recusal law, an amendment to Basic Law: The Government passed in March, changed an ambiguity in that law whereby the attorney general and the High Court might theoretically have had the power to order a prime minister to step down under certain circumstances, potentially including a violation of a conflict of interest agreement such as one signed by Netanyahu, who is on trial in three graft cases.

Thursday’s hearing in front of an 11-justice panel was the second of three major cases the court has taken up against Knesset legislation and ministerial policies, which has angered the government and severely aggravated the already strained relationship between the top court and the executive as Netanyahu’s coalition pursues an overhaul of the judiciary.

“There is an impression in the public that the attorney general can recuse the prime minister, but this is not the case. It is the government that determines that the prime minister is incapacitated from serving in his position and not the attorney general,” Helman said at the top of his arguments.

“The role of the attorney general is to give their legal opinion on the issue,” he continued.

But later in the hearing, Helman made a sharp U-turn.

“You can’t rule out all the options in advance; it should not be understood that a conflict of interest over a criminal trial cannot lead to recusing the prime minister,” Helman asserted several hours and a court recess after his initial comments, while indicating that this could occur only in exceptional circumstances.

Netanyahu is bound by a 2020 conflict of interest agreement drawn up under the auspices of the High Court to allow him to serve as prime minister despite being under criminal indictment.

That agreement prohibits Netanyahu from being involved in the appointment of judges and senior legal officials and also barred him from involvement in legislation that might affect the process or outcome of his trial.

The court adjourned after eight hours of oral arguments. It is unclear exactly when a ruling will be handed down, although Hayut is retiring on October 16 and must compose written opinions on open cases she has heard within three months from the date of her retirement.

The High Court of Justice holds a hearing on petitions against the government’s prime minister recusal law at the Supreme Court in Jerusalem, September 28, 2023 (Chaim Goldberg/Flash90)

Changing the rules of the game?

Despite the flip-flop, Helman’s arguments that the Basic Laws have been abused for inappropriate, narrow and political purposes fell on the attentive ears of several judges.

“The fact that they [the Knesset] are turning the constitution into putty puts the entire governmental framework into a difficult problem, these are not regular laws,” Helman argued.

Some of the liberal justices appeared to share his sentiment.

“When the law is colored from head to foot in a motive, the question is does this not influence the purpose of the law?” questioned Justice Isaac Amit in reference to whether or not the purpose, as well as the motivation, of the law was for narrow, personal reasons.

“The purpose of the law was to revoke the possibility of ordering a prime minister to recuse himself due to violating a conflict of interest agreement, which is relevant to the current situation,” added Justice Ofer Grosskopf.

But Hayut made clear that the court does not intend to outright strike down the law, insisting that it was the manner in which the amendment to the Basic Law, part of Israel’s makeshift constitution, was personally tailored for Netanyahu that bothered the court.

“The lacuna in the [previous] law has been filled, no one issued an injunction against the entire law, we’re only talking about when the law should be implemented,” she said. A court injunction in August froze implementation of the law and demanded that Netanyahu and the Knesset explain why it should go into effect when it could still benefit Netanyahu.

Representing the premier, attorney Michael Rabello rejected the legitimacy of the court’s authority to delay implementation of the law, saying it amounted to annulling it.

Lawyer Aner Helman, who is representing Attorney General Gali Baharav-Miara, addresses the High Court of Justice during a hearing on the recusal law, September 28, 2023. (Screenshot: Youtube; used in accordance with Clause 27a of the Copyright Law)

Justice Uzi Vogelman told Rabello to deal with the substance of the case, insisting that the court already ruled in a majority decision in 2021 that the court could intervene in cases involving “misuse of constituent authority,” which the recusal law could fall under.

Responding to claims that by passing the law the current government had “changed the rules of the game during the game,” Rabello insisted that it did not change the attorney general or court’s authority to recuse a prime minister, but simply clarified that they had no such authority.

“Recusal isn’t one of the rules of the game, there is no place in the world where this can happen. We should be asking how it is the petitioners who are trying to abolish the rules of the game,” contended Rabello.

But Hayut shot down this contention while having a swipe at the petitioners as well.

“We’re not dealing with the dreams of the petitioners,” she said in reference to her position that the only question was whether or not to delay implementation of the bill until after the next elections, not to kill it altogether, as government opponents seek.

“Their dreams have mixed together with your fears,” she said in reference to Netanyahu’s concern back in February that the attorney general was poised to recuse him from office, which was the motivation for passing the law.

Attorney General Gali Baharav-Miara at the Supreme Court in Jerusalem, May 29, 2022. (Yonatan Sindel/Flash90)

But some of the justices, including conservatives and moderates, had strong questions for Helman and the attorney general’s stance that implementation should be delayed.

“Let’s say we delay implementation — doesn’t this create an unclear situation in the period before it comes into effect [as to whether the prime minister can be ordered to recuse himself]?” asked Justice Anat Baron.

“We would need to use interpretative tools to decide the issue. Why is that a better situation?” demanded Justice Yael Wilner.

“Maybe it is a good idea to advance the implementation of the law to avoid this uncertainty,” chimed in Justice Alex Stein.

Justice David Mintz, thought to be perhaps the most conservative figure on the court, backed up this sentiment, arguing that despite the Knesset’s apparent motivation to assist Netanyahu, the purpose had been to permanently change the legal situation in perpetuity, asking “what’s the problem with that?”

Justice Noam Sohlberg, another conservative, also questioned why the previous, ambiguous legal situation was desirable.

“Should we harm the public by going back to the [previous] amorphous situation?” he demanded.

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